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High Court revisits ‘real prospect of success’ test when considering appeals

Peter Jackson J says that gloss on those words is not ‘necessary or helpful’

In H v G (Adoption Appeal) [2013] EWHC 2136 (Fam), Mr Justice Peter Jackson has considered again the test in rule 30.3(7) of the Family Procedure Rules 2010 that in order for the court to grant permission to appeal, an applicant must show 'a real prospect of success'.

The High Court has considered the test recently in NLW v ARC [2012] EWHC 55 (Fam), AV v RM [2012] EWHC 1173 (Fam) and C v R [2013] EWHC 1155 (Fam) which was reported after judgment was given in this case but is referred to in a postscript.

Although Peter Jackson J makes plain that the test had no bearing on the case before him, he states:

"I have noted the judgment of Mr Justice Mostyn in granting permission to appeal. During the course of that judgment he refers to previous formulations of his own and of Mr Justice Moor (AV v. RM (Appeal) [2012] 2 FLR 709) in relation to the appropriate test to be applied. The test, which appears at Rule 30.3(7) of the Family Procedure Rules 2010 is that an applicant must show 'a real prospect of success.' I would simply record that so far as I am concerned no further elaboration of those words is necessary or helpful. I would not, with respect to Mr Justice Mostyn, follow him in regarding it as a term of art or in focusing on the word 'fanciful' derived from a previous Court of Appeal authority as an antonym to the word 'real' in the rule; or of finding synonyms to that antonym, particularly the synonyms 'capricious, whimsical or absurd.'

"I respectfully suggest that to allow permission to appeal in any case where the application is not capricious, whimsical or absurd is to set the threshold too low. It does not, in my view, give effect to the rule that simply requires a real prospect of success to be shown.

"Postscript: Since the above judgment was given, I have seen and respectfully agree with the decision of Mr Justice Moylan in CR v SR [2013] EWHC 1155 (Fam), in which at paragraphs 2-8 he more fully considers the matter."

The judgment can be read here.